were unable to draw the frontier line by reason of the imperfection of the maps then in existence, and he therefore directed a further survey. This direction was beyond the terms of the reference, and the award, when made, was repudiated by the United States as void for excess. The point in dispute was only finally disposed of by the Webster-Ashburton treaty of 1842.
Subject-matter.—The history of international arbitration is dealt with in the article Peace, where treaties of general arbitration are discussed, both those which embrace all future differences thereafter to arise between the contracting parties, and also those more limited conventions which aim at the settlement of all future differences in regard to particular subjects, e.g. commerce or navigation. The rapid growth of international arbitration in recent times may be gathered from the following figures. Between 1820 and 1840, there were eight such instances; between 1840 and 1860, there were thirty; between 1860 and 1880, forty-four; between 1880 and 1900, ninety. Of the governments which were parties in these several cases Great Britain heads the list in point of numbers, the United States of America being a good second. France, Portugal, Spain and the Netherlands are the European states next in order. The present article is concerned exclusively with arbitration in regard to such existing differences as are capable of precise statement and of prompt adjustment. These differences may be arranged in two main groups:—
- (a) Those which have arisen between state and state in their sovereign capacities;
- (b) Those in which one state has made a demand upon another state, ostensibly in its sovereign capacity, but really on behalf of some individual, or set of individuals, whose interests it was bound to protect.
To group (a) belong territorial differences in regard to ownership of land and rights of fishing at sea; to group (b) belong pecuniary claims in respect of acts wrongfully done to one or more subjects of one state by, or with the authority of, another state. To enumerate even a tenth part of the successful arbitrations in recent times would occupy too much space. Some prominent examples (dealt with elsewhere under their appropriate titles) are the dispute between the United States and Great Britain respecting the “Alabama” and other vessels employed by the Confederate government during the American Civil War (award in 1872); that between the same powers respecting the fur-seal fishery in Bering Sea (award in 1893); that between Great Britain and Venezuela respecting the boundary of British Guiana (award in 1899); that between Great Britain, the United States and Portugal respecting the Delagoa railway (award in 1900); that between Great Britain and the United States respecting the boundary of Alaska (award in 1903). The long-standing Newfoundland fishery dispute with France (finally settled in 1904) is dealt with under Newfoundland. Other examples are shortly noticed in the tables on p. 329, which although by no means exhaustive, sufficiently indicate the scope and trend of arbitration during the years covered. The cases decided by the permanent tribunal at the Hague established in 1900 are not included in these tables. They are separately discussed later.
The Hague Tribunal.—The establishment of a permanent tribunal at the Hague, pursuant to the Peace convention of 1899, marks a momentous epoch in the history of international arbitration. This tribunal realized an idea put forward by Jeremy Bentham towards the close of the 18th century, advocated by James Mill in the middle of the 19th century, and worked out later by Mr Dudley Field in America, by Dr Goldschmidt in Germany, and by Sir Edmund Hornby and Mr Leone Levi in England. The credit of the realization is due, in the first place, to the tsar of Russia, who initiated the Hague Conference of 1899, and, in the second place to Lord Pauncefote (then Sir Julian Pauncefote, British ambassador at Washington), who urged before a committee of the conference the importance of organizing a permanent international court, the service of which should be called into requisition at will, and who also submitted an outline of the mode in which such a court might be formed. The result was embodied in the following articles of the Convention, signed on behalf of sixteen of the assembled powers on the 29th of July 1899.
(Art. 23). Each of the signatory powers is to designate within three months from the ratification of the convention four persons at the most, of recognized competence in international law, enjoying the highest moral consideration, and willing to accept the duties of arbitrators. Two or more powers may agree to nominate one or more members in common, or the same person may be nominated by different powers. Members of the court are to be appointed for six years and may be re-nominated. (Art. 25). The signatory powers desiring to apply to the tribunal for the settlement of a difference between them are to notify the same to the arbitrators. The arbitrators who are to determine this difference are, unless otherwise specially agreed, to be chosen from the general list of members in the following manner:—each party is to name two arbitrators, and these are to choose a chief arbitrator or umpire (sur-arbitre). If the votes are equally divided the selection of the chief arbitrator is to be entrusted to a third power to be named by the parties. (Art. 26). The tribunal is to sit at the Hague when practicable, unless the parties otherwise agree. (Art. 27). “The signatory powers consider it a duty in the event of an acute conflict threatening to break out between two or more of them to remind these latter that the permanent court is open to them. This action is only to be considered as an exercise of good offices.” Several of the powers nominated members of the permanent court pursuant to Art. 25, quoted above, those nominated on behalf of Great Britain being Lord Pauncefote, Sir Edward Malet, Sir Edward Fry and Professor Westlake. On the death of Lord Pauncefote, Major-General Sir John C. Ardagh was appointed in his place.
Hague Cases.—(1) The first case decided by the Hague court was concerned with the “Pious Fund of the Californias.” A fund bearing this name was formed in the 18th century for the purpose of converting to the Catholic faith the native Indians of Upper and Lower California, both of which then belonged The pious
fund of the Californias.to Mexico, and of maintaining a Catholic priesthood there. By a decree of 1842 this fund was transferred to the public treasury of Mexico, the Mexican government undertaking to pay interest thereon in perpetuity in furtherance of the design of the original donors. After the sale of Upper California to the United States, effected by the treaty of Guadalupe Hidalgo (1848), the Mexican government refused to pay the proportion of the interest to which Upper California was entitled. The question of liability was then referred to commissioners appointed by each state, and, on their failing to agree, to Sir Edward Thornton, British minister at Washington, who by his award, in 1875, found there was due from Mexico to Upper California, or rather to the bishops there as administrators of the fund, an arrear of interest amounting to nearly $100,000, which was directed to be paid in gold. This award was carried out, but payment of the current interest was again withheld as from the 24th of October 1868. Claim was thereupon made on Mexico by the United States on behalf of the bishops, but without success. Ultimately, in May 1902, an agreement was come to between the two governments which provided for the settlement of the dispute by the Hague tribunal. The points to be determined were (1) whether the matter was res judicata by reason of Sir E. Thornton’s award; (2) whether, if not, the claim for the interest was just. The arbitrators selected by the United States were Sir E. Fry and Professor F. de Martens, and by Mexico, Professor Asser and Professor de Savornin Lohman, both of Amsterdam. These four (none of whom, it will be observed, was of the nationality of either party in difference) chose for their umpire Professor Matzen, of Copenhagen, president of the Landsthing there. In October 1902, the court decided both questions in the affirmative, awarding the payment by Mexico of the annual sum claimed, not in gold, but en monnaie ayant cours légal au Mexique. The direction to pay in gold made by Sir E. Thornton was held to be referable only to the mode of the execution of the award, and therefore not to be chose jugée.
(2) The second arbitration before the Hague court was more important than the first, not only because so many of the great powers were concerned in it, but also because it brought about the discontinuance of acts of war. The facts may be stated shortly thus. By three several protocols signed Great Britain, Germany and Italy versus Venezuela.at Washington in February 1903, it was agreed that certain claims by Great Britain, Germany and Italy, on behalf of their respective subjects against the Venezuelan government should be referred to three mixed commissions, and that for the purpose of securing the payment of these claims 30% of the customs revenues at the ports of La Guayra and Puerto Caballo should be remitted in monthly instalments to the representative of the Bank of England at Caracas. Prior to the date of these protocols, an attempt had been made by Great Britain, Germany and Italy to enforce their claims by blockade, and a further question arose as between these three powers on the one hand, and the United States of America, France, Spain, Belgium, the Netherlands, Sweden and Norway, and Mexico (all of whom had claims against Venezuela, but had abstained from hostile action) on the other hand, as to whether the blockading powers were entitled to preferential treatment. By three several protocols signed in May
